Same-sex Harassment Claims

posted by Robert Kapitan  |  Jun 29, 2010 7:41 PM [EST]  |  applies to Ohio

Claims of sexual harassment where the harasser and harassed are the same sex are analyzed in much the same way as different-sex harassment cases.  See, generally, Sexual harassment by a co-worker.  However, the analysis in cases of same-sex harassment cases is unique in that, in same-sex cases, some courts do not recognize the inference that the harassment was “based on sex,” as it does in a typical sexual harassment case. 

In a typical case, where the conduct involves a man and a woman, courts have traditionally assumed that the sexually hostile, vulgar or offensive harasser was motivated by sex.  In same-sex cases though, the motivation is not assumed.  Defendants will usually argue that the plaintiff must show that the harasser is homosexual, and if that cannot be shown, then argue that the harassment was mere horseplay.

This is not necessarily correct.  Federal courts have held that another possible way to establish the “based on sex” element is to show that the harassed employee was subjected to “earnest sexual solicitation.”  This corresponds to the legal definition of “sexual harassment” as unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature which interferes with work or creates a hostile or offensive working environment.  That is, if the sexual advances by a member of the same sex are genuine but unwelcome, the fact that the harassed is not homosexual should not bar a suit for same sex harassment. 

While same-sex harassment claims face unique challenges, the burden to prove a claim should not be much greater than that of an opposite sex claim. The law in this area is unsettled, however, so check with an employment lawyer in your state to learn the current status of the law.

Useful Cases and Law

• Shepherd v. Slater Steels Corp. (7th Cir. 1999) 168 F.3d 998, 1009
• English v. Pohanka of Chantilly, Inc. (E.D. Va. 2002) 190 F.Supp.2d 833
• Dick v. Phone Directories Co., Inc. (10th Cir. 2005), 397 F.3d 1256, 1265
• 29 C.F.R. §1604.11(a)
• O.A.C. §4112-5-05(J)

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posted by Robert Kapitan  |  Jun 29, 2010 7:41 PM [EST]  |  applies to Ohio